Welcome to “CEQA News You Can Use,” a quarterly production of Brownstein Hyatt Farber Schreck, LLP’s Natural Resources lawyers. This publication provides quick, useful bites of CEQA news, which we hope can be a resource to your real-time business decisions. That said, it is not and cannot be construed to be legal advice. Enjoy!
Legislature seeks to moot CEQA suit on Capitol Annex Project in wake of appellate court rulings
It’s nice to have the California State Legislature on your side. The California Department of General Services (DGS) recently received a reprieve in the form of SB 174, seeking to exempt the Capital Annex Project from further CEQA review amid continuing challenges. The saga began with the State Capitol Building Annex Act of 2016, which permitted the Joint Rules Committee to renovate the existing State Capitol Annex. Over the following years, DGS circulated and revised EIRs for the State Capitol Annex project. Various groups initiated CEQA lawsuits, claiming that the EIRs were insufficient. In a previous case, the Third District Court of Appeal found DGS needed to complete additional steps before recertifying its EIR (see Save Our Capitol! v. Dept. of Gen. Srvcs. (2023) 87 Cal.App.5th 655). In September 2023, DGS submitted a final return to the writ, which the plaintiffs challenged, arguing that the revised EIR did not comply with all the directives in the writ. In Save the Trees v. Dept. of Gen. Srvcs. (2024) 101 Cal.App.5th 1237, the Third District found that DGS had to address all the directives in the writ before it could be discharged pursuant to Public Resources Code Section 21168.9. Mere months after this decision was issued, however, SB 174 was signed into law. The bill purports to exempt from CEQA “current and future projects” related to the State Capitol Building Annex, as well as from other laws.
Construction of project during CEQA suit does not always moot the lawsuit
If CEQA is procedural, does it still apply after a project is completed? In Vichy Springs Resort, Inc. v. City of Ukiah (2024) 101 Cal.App.5th 46 (review denied), the First District Court of Appeal answered “yes.” After the City of Ukiah issued a building permit authorizing the Ukiah Rifle and Pistol Club to demolish an existing shooting range and construct a new range on land located within unincorporated Mendocino County, petitioners brought CEQA challenges against both the county and the city for allowing the project to proceed without environmental review. Although the club had completed its project while the litigation was pending, the First District held that “even at this late juncture” a CEQA claim is not rendered “moot” by the project’s completion since Mendocino County and City of Ukiah could still revoke project approvals and impose additional mitigation measures as a condition of reapproval. The agencies may also require completed portions of the project to be modified or removed and compel restoration. Since the petition specifically alleged mitigation measures that the county or the city could require to reduce the alleged significant environmental effects of the project, the court concluded that it could provide effective relief over the CEQA claims. Further, although CEQA does not apply to government “inaction,” Mendocino County’s decision not to undertake CEQA review based on its determination that it did not have regulatory authority to issue a discretionary use permit to the Ukiah Rifle and Pistol Club constituted an “action” subject to CEQA.
Noisy CEQA saga comes to an end: Supreme Court greenlights People’s Park housing project
It’s official! The long-running legal battle over UC Berkeley’s proposed housing project at People’s Park has officially come to a close. On June 6, 2024, the California Supreme Court ruled in Make UC a Good Neighbor v. Regents of University of California (2024) 16 Cal.5th 43, finding that UC Berkeley’s 2021 Long Range Development Plan (“2021 LRDP”) was adequate despite omitting consideration of the environmental impacts of “social noise” and not contemplating alternative locations to the People’s Park housing project. In turn, the Supreme Court relied heavily on the legislature’s intent in enacting AB 1307 to determine that section 21085 made the EIR adequate because UC Berkeley was not required to consider the environmental impacts of social noise resulting from either the housing project or the 2021 LRDP more broadly. Similarly, the Supreme Court determined that the housing project met the section 21085.2 criteria, relieving UC Berkeley from the obligation to evaluate alternative locations for the housing project. This decision confirms AB 1307 broadly eliminates the need to analyze social noise under CEQA for a wide range of agency decisions related to residential development and provides that public higher education institutions need not consider alternative locations for residential or mixed-use housing projects when they meet the section 21085.2 criteria. For more background on this issue, this case appeared in Volume 8, Issue 1 of CEQA News and AB 1307's enactment is covered in Volume 8, Issue 2.
Down by the river: infill exemption correctly applied to creek-side housing project
In Nassiri v. City of Lafayette (2024) 103 Cal.App.5th 910, the First District Court of Appeal upheld the City of Lafayette’s reliance on CEQA Guidelines Section 15332 (infill development) to find the approval of a 12-unit residential condominium project exempt from CEQA. The neighboring building owner challenged the approval, arguing that the creek-side project was ineligible for the exemption given that the creek had value as a habitat for two rare or threatened species of birds and that the project’s construction would allegedly result in significant air quality impacts. The court disagreed, holding that although the birds native to the creek are of “conservation concern,” the city’s biologist provided substantial evidence that the birds are neither rare for the area nor threatened. The court also noted that petitioner’s claimed air quality impacts were based on a seven-day construction schedule, despite the project proposing only a five-day construction schedule. With these arguments holding no water, the court ruled that the City of Lafayette was able to rely on the infill exemption and the creek-side project was able to float on.
Appellate court gives a NOD to appeal to Board of Supervisors
In Center for Biological Diversity et al. v. County of San Benito (2024) ___ Cal.App.5th ___, entrepreneurs applied for a conditional use permit (CUP) for “a large commercial roadside attraction known as the Betabel Project.” San Benito County prepared an EIR, which later was certified and the project approved by the County Planning Commission. On Oct. 14, 2022, the county filed a Notice of Determination (Commission NOD). The Center for Biological Diversity (CBD) and the Amah Mutsu Tribal Band each appealed the Planning Commission’s decision to the San Benito County Board of Supervisors. On Nov. 8, 2022, the board denied the appeals, certified the final EIR, adopted the mitigation monitoring program and made a statement of overriding considerations pursuant to CEQA. Following that decision, San Benito County filed a second NOD on Nov. 10, 2022 (Board NOD). On Dec. 9, 2022, CBD and the tribe each filed petitions for writ of mandate challenging the county’s final approval of the project. The project applicants demurred to the writ petitions, arguing that they were time-barred because they were filed more than 30 days after the posting of the Commission NOD, which the trial court sustained. CBD and the tribe appealed, arguing that Public Resources Code Section 21152(a) requires that a local agency file the NOD within five working days after project approval becomes final and CEQA Guidelines Section 15352(b) states that the date of final project approval is to be determined under local agency ordinances and regulations. Finding for CBD and the Amah Mutsu Tribal Band, the Sixth District Court of Appeal found that the County Code provided that the Planning Commission’s approval was not final because it was timely appealed to the Board of Supervisors, so it was the Board NOD, not the Commission NOD, that triggered CEQA’s 30-day statute of limitations.
Bright line adopted for appeals
As this newsletter has regularly reported, many CEQA cases are appealed for a second bite at the apple. Recently, in Meinhardt v. City of Sunnyvale (2024) 16 Cal.5th 643, 522 P.3d 420, the California Supreme Court created a bright-line rule that the time to appeal in a writ of administrative mandate proceeding pursuant to Code of Civil Procedure section 1094.5 starts to run with the entry of judgment or service of notice of entry of judgment, not with the filing of an order or other ruling. This applies even where an appellate court might deem such a ruling appealable to vindicate the right of appeal. As many CEQA cases are brought under section 1094.5, CEQA practitioners should heed this decision.
Legislature takes measured approach to CEQA
This session the California State Legislature has focused on targeted CEQA streamlining for particular industries and project types, rather than broad reforms to the statute. For utility system upgrades, AB 3238 (E. Garcia) would have provided a truncated 270-day timeline for environmental review of electrical infrastructure projects, and designated the California Public Utilities Commission as the lead agency for such projects. Investor-owned utilities like Pacific Gas and Electric and San Diego Gas and Electric argued that they need the streamlining to keep up with the rapid growth in energy transmission demand driven by new renewable generation coming online. The bill was held in the Senate Appropriations due to cost concerns, but the issue is likely to resurface in future years. In the housing space, AB 3068 (Haney) provides CEQA streamlining for adaptive reuse projects that meet specified labor standards, including the use of a skilled and trained workforce. The legislature has identified the conversion of vacant office buildings into new housing as a cost-effective way to support urban infill development, and bill proponents have argued that since these projects already underwent significant environmental review when the building was constructed that their conversion to residential use should be subject to reduced scrutiny. The legislature is also seeking to address homelessness with CEQA reforms. SB 1395 (Becker) provides CEQA exemptions for certain local government actions related to Low Barrier Navigation Centers for individuals experiencing homelessness. While most communities agree that unsheltered homelessness is a significant issue, actually siting the facilities to serve these individuals remains politically controversial. By removing discretionary decisions about homelessness housing from the purview of local elected officials, the bill may encourage them to be more proactive in addressing the issue.
Little Hoover Commission takes on CEQA
If you’ve made it to the end of this newsletter, maybe you’d like to learn a little more? The Little Hoover Commission conducted a review of CEQA and has made several recommendations for improving the venerable statute. The Little Hoover Commission’s report can be found here.
This document is intended to provide you with general information regarding CEQA-related updates. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions. The information in this article is accurate as of the publication date. Because the law in this area is changing rapidly, and insights are not automatically updated, continued accuracy cannot be guaranteed.